Citation Nr: 21025711 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-24 154 DATE: April 28, 2021 REMANDED Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1967 to July 1971 with subsequent periods of service with a Reserve Component. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of January 2013 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In March 2020, the Board remanded the appeal. At the outset, the Board notes that the Veteran has been in receipt of a total disability rating since April 27, 2017, with separate special monthly compensation awards. Entitlement to service connection for right and left knee disorders are remanded. The Veteran maintains that his bilateral knee disorders are related to service to the cumulative stress placed on his knees during his active duty service and subsequent periods of Reserve Component service. In March 2020 the Board remanded the appeal to obtain new medical opinions as to the etiology of his bilateral knee disorders to include whether they are due to the Veteran’s service and/or as a result of his already service-connected back disability and bilateral lower extremity radiculopathy to include the adjustments in his gait and stance to adapt to these disorders. See El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). However, while the post-Remand record shows that the RO obtained a VA etiology opinion in October 2020, the Board does not find that opinion to be adequate. The Board has reached this conclusion because the examiner either did not provide an opinion as to secondary service connection and did not provide an adequate opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In this regard, the examiner’s only rationale for one of his opinions was a notation that “no information found during in service.” See Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). Therefore, while the Board sincerely regrets the additional delay in the adjudication of this appeal, it must nonetheless remand it so new and adequate etiology opinions can be obtained. See 38 U.S.C.§ 5103A(d); Stegall v. West, 11 Vet. App. 268 (1998). In this regard, the post-Remand VA examiner when providing the requested opinion and the RO when again adjudicating the claim should be mindful of the fact that in Ward v. Wilkie, 31 Vet. App. 233 (2019) the United States Court of Appeals for Veterans Claims (Court) redefined the definition of aggravation to know include a temporary worsening of a disability. While the appeal is in remand status, any outstanding VA and private treatment records should also be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Contact the Veteran and ask him to identify whether there are any outstanding non-VA medical records reflecting treatment for the claimed knee disabilities. If such records are identified, then obtain those records and associate them with the electronic claims file. The Veteran is encouraged to obtain and submit these records himself in order to avoid any additional delays. 3. In order to comply with the March 2020 Remand, obtain an addendum opinion from a qualified medical professional to address the nature and origin of the Veteran’s bilateral knee disabilities. The claims file should be made available and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: (a) Provide diagnoses for all knee disabilities. (b) As to each diagnosed knee disability, provide an opinion as to whether it was caused by a disease or injury while on a period of active duty or active duty for training (ACDUTRA) or an injury while on a period of inactive duty for training (INACDUTRA). (c) Provide an opinion as to whether arthritis in either knee was diagnosed in the first year following any period of active duty. (d) Provide an opinion as to whether it is at least as likely as not (a 50% or greater probability) that any knee disability was caused by the service-connected back disability and/or bilateral lower extremity radiculopathy to include any adjustments the Veteran has to make in his gait or stance to adapt to such disorders. (e) Provide an opinion as to whether it is at least as likely as not (a 50% or greater probability) that any knee disability was aggravated by the service-connected back disability and/or bilateral lower extremity radiculopathy to include any adjustments the Veteran has to make in his gait or stance to adapt to such disorders. In providing answers to all the above questions the examiner should consider and discuss the Veteran’s competent lay claims regarding observable symptomatology. In providing answers to all the above questions the examiner should consider and discuss all pertinent service treatment records. In providing answers to all the above questions the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing the aggravation opinion the examiner should consider and discuss the Court in Ward, supra, new definition of aggravation which now includes temporary worsening of a disability. In answering all the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. (Continued on the next page)   If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Woehlke The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.